Exhibit D - EJCDC Design-Build Contract.pdf

EJCDC® D-512, Agreement Between Owner and Design-Builder for Progressive Design-Build.

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations.

AGREEMENT

BETWEEN OWNER AND DESIGN-BUILDER FOR

PROGRESSIVE DESIGN-BUILD

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

Copyright © 2016:

National Society of Professional Engineers

1420 King Street, Alexandria, VA 22314-2794

(703) 684-2882 www.nspe.org

American Council of Engineering Companies

1015 15th Street N.W., Washington, DC 20005

(202) 347-7474 www.acec.org

American Society of Civil Engineers

1801 Alexander Bell Drive, Reston, VA 20191-4400

(800) 548-2723 www.asce.org

The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC documents; please direct all inquiries regarding EJCDC copyrights to NSPE.

NOTE: EJCDC publications may be purchased at www.ejcdc.org, or from any of the sponsoring organizations above.

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Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

AGREEMENT

BETWEEN OWNER AND DESIGN-BUILDER

FOR PROGRESSIVE DESIGN-BUILD

THIS AGREEMENT is by and between (“Owner”) and

(“Design-Builder”).

PROJECT INFORMATION

Project: [ ] [name, Owner’s identification number]

Design-Build Contract: [name, Owner’s identification number] (“Contract”)

Owner’s Consultant: [ ] [Identify the individual or entity (if any) retained by Owner to prepare Conceptual Documents and provide consultation services. See EJCDC® D-500, Agreement between Owner and Owner’s Consultant for Professional Services—Design-Build Project.]

Engineer: Design-Builder has retained [ ] (“Engineer”) for the performance of professional engineering services under this Contract. [Identify the individual or entity retained for engineering design services.

See EJCDC® D-505, Agreement between Design-Builder and Engineer for Professional Services.]

Authorized Representatives: Owner and Design-Builder each hereby designates a specific individual authorized to act as representative with respect to the performance of responsibilities under this Contract. Such an individual shall have authority to transmit instructions, receive formal notices, receive information, and render decisions relative to this Contract on behalf of the respective party that the individual represents.

1. Owner’s Authorized Representative: [ ] [include mailing and delivery addresses, e-mail address, telephone numbers]

2. Design-Builder’s Authorized Representative: [ ] [include mailing and delivery addresses, e-mail address, telephone numbers]

Owner and Design-Builder further agree as follows:

ARTICLE 1 – THE WORK

1.01 General Description: Design-Builder shall complete all Work as specified or indicated in the Contract. The Work is generally described as the design and construction of the following: [ ]

1.02 Work Stages:

A. Preliminary Stage: As set forth in more detail in Exhibit A, which is attached and incorporated by reference, Design-Builder shall perform the following in the Preliminary

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

Stage: Study and Report services; drafting of Preliminary Technical Documents; and Construction Planning services (including preparation of proposed Completion Stage Price).

B. Completion Stage: If Owner and Design-Builder advance to the Completion Stage pursuant to Paragraph 3.03, then Design-Builder shall perform the following in the Completion Stage:

Preparation of Construction Drawings and Construction Specifications, based on the Preliminary Technical Documents; Construction; Start-up, Testing, and Commissioning; and Correction Phase services.

C. Regardless of stage, the Work is subject to the terms of the Standard General Conditions.

ARTICLE 2 – CONTRACT TIMES

2.01 Time of the Essence

A. All time limits for Design-Builder’s attainment of Milestones, Substantial Completion, and completion and readiness for final payment, as stated in the Contract, are of the essence of the Contract.

2.02 Contract Times: Preliminary Stage

A. Design-Builder shall complete the Work under the Preliminary Stage on or before [ ] [or] within [ ] days of the Effective Date.

B. In addition to Design-Builder’s Preliminary Stage completion commitment above, the parties shall meet the following Preliminary Stage Schedule:

NOTE(S) TO USER:

In many cases it will be useful to have a detailed schedule for the completion of Preliminary Stage tasks; an example of such a schedule follows. The example is based on the Preliminary Stage scope of work set forth in Exhibit A to this Agreement, as published. The schedule should be modified to reflect any changes that are made to the Preliminary Stage Work in Exhibit A, as finalized for the specific project.

PRELIMINARY STAGE SCHEDULE

Party Action Schedule

Design- Builder

Furnish [ ] review copies of the Report and other Study and Report Phase deliverables to Owner.

Within [ ] days of the Effective Date.

Owner Submit comments regarding Report and other Study and Report Phase deliverables to Design-Builder.

Within [ ] days of the receipt of Report and other Study and Report Phase deliverables from Design-Builder.

Design- Builder

Furnish [ ] copies of the revised Report and other Study and Report Phase deliverables to Owner.

Within [ ] days of the receipt of Owner’s comments regarding the Report and other Study and Report Phase deliverables.

Design- Builder

Furnish [ ] review copies of the Preliminary Technical Documents to Owner.

Within [ ] days of Owner’s authorization to proceed with Preliminary Technical Documents services.

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Owner Submit comments regarding Preliminary Technical Documents to Engineer.

Within [ ] days of the receipt of Preliminary Technical Documents from Engineer.

Design- Builder

Furnish [ ] copies of the revised Preliminary Technical Documents to Owner.

Within [ ] days of the receipt of Owner’s comments regarding the Preliminary Technical Documents.

Design- Builder

Furnish to Owner a final, binding Completion Stage Price based on the Cost Plus a Fee, Subject to a Guaranteed Maximum Price method of compensation [or based on the Stipulated Sum method of compensation.]

Within [ ] days of submittal to Owner of the revised Preliminary Technical Documents.

2.03 Contract Times: Completion Stage

NOTE(S) TO USER:

In many cases the parties will not be able to establish with certainty the construction completion schedule, including determination of key dates such as Substantial Completion, until Design-Builder has progressed through the planning and design tasks under the Preliminary Stage. In such cases, at the outset of the contract the completion provisions that follow should indicate either (1) “to be determined,” or (2) after stating a date or number of days, “(approximate; subject to mutual revision by Change Order).”

A. [Intermediate Milestones, if any: Construction, Start-up, Testing]

NOTE(S) TO USER:

In the interests of giving the Design-Builder substantial flexibility in completing the Work, EJCDC recommends that intermediate Construction-related Milestones be used sparingly on design-build projects. One exception to this general principle would be a project in which designated parts of the Work are to be completed and turned over to Owner for beneficial use prior to overall completion of the Work, in which case a Milestone would be needed to establish the deadline for such partial completion. See also the note concerning liquidated damages for Milestones following Paragraph 2.04.B.

B. The Work will be substantially completed within [ ] days after Owner approves a binding Completion Stage Price.

[or]

B. The Work will be substantially completed on or before [ ].

C. The Work will be completed and ready for final payment within [ ] days after Owner approves a binding Completion Stage Price [or] [on or before [ ]].

2.04 Liquidated Damages; Early Completion Bonus

A. Construction: Design-Builder and Owner recognize that time is of the essence as stated in Paragraph 2.01 and that Owner will suffer financial and other losses if the Work is not

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

completed within the times specified in Paragraph 2.03, as such may be revised in accordance with the Contract. The parties also recognize the delays, expense, and difficulties involved in proving, in a lawsuit or arbitration proceeding, the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Design-Builder agree that as liquidated damages for delay (but not as a penalty):

1. Substantial Completion: Design-Builder shall pay Owner $[ ] for each day that expires after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 2.03.B for Substantial Completion, until the Work is substantially complete.

2. Completion of Remaining Work: After Substantial Completion, if Design-Builder shall neglect, refuse, or fail to complete the remaining Work within the Contract Time (as duly adjusted pursuant to the Contract) for completion and readiness for final payment, as specified in Paragraph 2.03.D above, then Design-Builder shall pay Owner $[ ] for each day that expires after such until the Work is completed and ready for final payment.

3. Liquidated damages for failing to timely attain Substantial Completion, final completion, and Milestones (if applicable) are not additive, and will not be imposed concurrently.

Liquidated damages for failing to attain Substantial Completion shall take precedence.

4. Milestones: Design-Builder shall pay Owner $[ ] for each day that expires after the time (as duly adjusted pursuant to the Contract) specified above for achievement of Milestone 1, until Milestone 1 is achieved.

B. Intermediate Milestones: Design-Builder and Owner agree that for the reasons set forth in Paragraph 2.04.A it is also mutually beneficial to establish liquidated damages for failure to meet the following schedule commitments:

1. Design-Builder shall pay Owner $[ ] for each day that expires after the time (as duly adjusted pursuant to the Contract) specified above for achievement of Milestone [ ], until Milestone [ ] is achieved.

C. Bonus: Design-Builder and Owner further recognize the Owner will realize financial and other benefits if the Work is substantially completed prior to the time specified for Substantial Completion. Accordingly, Owner and Design-Builder agree that as a bonus for early completion, Owner shall pay Design-Builder $[ ] for each day prior to the time specified in Paragraph 2.03 for Substantial Completion [as set forth in this Agreement as of the Effective Date] or [as duly adjusted pursuant to the Contract] that the Work is substantially complete. The maximum value of the bonus shall be limited to $[ ].

ARTICLE 3 – CONTRACT PRICE

3.01 Contract Price Definitions

A. For purposes of this Agreement, the following definitions apply:

1. Contract Price—The money that Owner has agreed to pay Design-Builder for performance and completion of the Work in accordance with the Contract Documents.

Contract Price is comprised of the Preliminary Stage Price and the Completion Stage Price, and when applicable the Owner’s Completion Contingency. Contract Price is subject to and governed by any duly established Guaranteed Maximum Price.

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2. Preliminary Stage Price—the portion of the Contract Price established in Paragraph 3.02, as Design-Builder’s compensation for the performance of the Preliminary Stage Work.

3. Completion Stage Price—the portion of the Contract Price established in Paragraph 3.03, as Design-Builder’s compensation for the performance of the Completion Stage Work.

4. Owner’s Completion Contingency—When applicable, a contingent amount included in the Contract Price for use by Owner, at its sole discretion, in funding the Completion Stage Price.

3.02 Preliminary Stage

A. For performance of the Preliminary Stage Work in accordance with the Contract Documents, Owner shall pay Design-Builder the Preliminary Stage Price (1) pursuant to the following compensation methods, and (2) in the amounts that follow, subject to adjustment under the Contract, and subject to the applicable terms of Exhibit B:

NOTE(S) TO USER:

1. Indicate the compensation method that applies to each phase of Preliminary Stage Services, selecting from the three options described in detail in Exhibit B:

Stipulated Price, Direct Labor Costs Times a Factor, Standard Hourly Rates.

2. For the phases, as an alternative to indicating dollar amounts in the right-hand column, instead indicate a percentage and state a lump sum (stipulated price) only in the Total row.

Category Compensation Method Amount Study and Report Phase $ Preliminary Technical Documents $ Construction Planning $ [Study and Report, Preliminary Technical Documents, and Construction Planning Phases, combined.]

Total: Preliminary Stage Price

B. Monetary amounts stated for portions of the work to be performed on a Stipulated Price basis are fixed and binding. For portions of the Work subject to the Direct Labor Costs Times a Factor or Standard Hourly Rates methods of payment, the stated monetary amounts are estimates of the amounts that will become payable for the specified services; such stated amounts are for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to Design-Builder under the Agreement.

3.03 Completion Stage

A. As part of Construction Planning under the Preliminary Stage, Design-Builder is required to determine an estimate of the cost of completion of the Work, including completion of the design and all Construction labor, administration, equipment, materials, and subcontracts (“Completion Cost Estimate”). Any categories of Construction that are not included in the Construction Cost Estimate, because their price will be determined by competitive bidding as set forth in Exhibit B, should be noted. Design-Builder shall use the final Completion Cost

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

Estimate as the basis for developing and submitting to Owner a proposed Completion Stage Price based on:

1. the Cost of the Completion of the Work Plus Design-Builder’s Fee, Subject to a Guaranteed Maximum Price, method of compensation, as set forth in Exhibit B.

[or]

1. the Stipulated Price method of compensation, as set forth in Exhibit B.

B. The proposed Completion Stage Price shall be based on the Contract Times established in this Agreement; or if no Contract Times were established with respect to the Completion Stage when the Agreement was executed, then upon proposed or mutually-agreed Contract Times developed during the Preliminary Stage and expressly stated as an essential part of Design-Builder’s Completion Stage Price submittal to Owner.

C. The proposed Completion Stage Price submitted by Design-Builder to Owner constitutes an offer that is binding on Design-Builder for 30 days.

D. After receipt of the proposed Completion Stage Price from Design-Builder, Owner shall either (1) accept the Completion Stage Price, in which case the Completion Stage Price is binding on both Owner and Design-Builder for the performance of the Completion Stage Work; or (2) enter into negotiations with Design-Builder regarding the Completion Stage Price and the corresponding scope of Work and schedule, or (3) reject the Completion Stage Price. If Owner accepts the Completion Stage Price, or an accord is reached through negotiations, the parties shall prepare and enter into a Change Order or special amendment to the Contract, memorializing the acceptance of such Completion Stage Price, as modified by any negotiations, and establishing an adjusted Contract Price or Guaranteed Maximum Price based upon such Completion Stage Price. [The user may wish to consider stating that if Owner accepts the Completion Stage Price, or a negotiated accord is reached, the parties will enter into a new superseding contract that memorializes the agreed-upon Completion Stage Price and other terms, and establishes a Contract Price or Guaranteed Maximum Price that is based upon such Completion Stage Price.]

If Owner does not accept the proposed Completion Stage Price, and negotiations (if any) are not successful, then the Contract shall terminate for convenience. Under such a termination for convenience,

1. Design-Builder shall be entitled to full payment for all Preliminary Stage Work;

2. Owner shall be entitled to use of the Preliminary Technical Documents only if Owner pays a supplemental termination fee of $[ ]; and

3. Owner shall assume and discharge all remaining payment obligations for any equipment or materials that Design-Builder has ordered or purchased for the Project pursuant to express authorization from Owner, and Design-Builder shall assign to Owner all rights and interests in any such equipment and materials.

3.04 Changes in Contract Price Based on Cost of the Work

A. If the price of Design Professional Services covered by a Change Order or an adjustment in the Contract Price is determined on the basis of Cost of the Work, then for such Design Professional Services (exclusive of reimbursable expenses, if any) the Engineer, Project Design Professional, or other design entity performing the Design Professional Services

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

(regardless of tier) may invoice no more than the direct labor cost of each employee providing services multiplied by a factor of [ ] [insert multiplier for such design services], which covers labor costs, overhead, and profit.

B. If the value of Work covered by a Change Order or an adjustment in the Contract Price is determined on the basis of Cost of the Work, and involves Work performed under Construction Subcontracts or Design Agreements, the allowable mark-ups on lower tier invoices shall be limited as stated in Paragraph 11.05.D.2.c and d of the General Conditions.

ARTICLE 4 – PAYMENT PROCEDURES

4.01 Submittal and Processing of Payments

A. Design-Builder shall submit Applications for Payment for processing by Owner in accordance with Article 14 of the General Conditions.

4.02 Progress Payments; Retainage

A. During the Preliminary Stage the Owner shall make payment within 30 days of the receipt of Design-Builder’s invoice for Preliminary Stage services. Owner shall not withhold any portion of such payment as retainage.

B. During the Completion Stage the Owner shall make progress payments on account of the Completion Stage Price on the basis of Design-Builder’s Applications for Payment on or about the [ ] day of each month during construction as provided in Paragraphs 4.02.A.1 and 4.02.A.2 below, provided that such Applications for Payment have been submitted in a timely manner and otherwise meet the requirements of the Contract. All such payments will be measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no Schedule of Values, as provided elsewhere in the Contract.

1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Owner may withhold, including but not limited to liquidated damages, in accordance with the Contract:

a. [ ] percent of the Cost of Work completed (or in the case of a Stipulated Price contract, such percentage of the value of Work completed), with the balance being retainage. If the Work has been 50 percent completed as determined by Owner, and if the character and progress of the Work have been satisfactory to Owner, then as long as the character and progress of the Work remain satisfactory to Owner, there will be no additional retainage; and

b. [ ] percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage).

2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Design-Builder to [ ] percent [Note: a typical amount here is 100%] of the Work completed, less such amounts set off by Owner pursuant to Paragraph 14.01.G of the General Conditions, and less [ ] percent [Note: a typical amount here is 200%] of Owner’s estimate of the value of Work to be completed or corrected as shown on the punch list of items to be completed or corrected prior to final payment.

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3. Notwithstanding the provisions above, no retainage shall be withheld with respect to the portion of an Application for Payment pertaining to engineering, design, and other professional services.

C. For Design-Builder’s fee: In the case of a Cost of the Work contract, progress payments on account of the Design-Builder’s fee will be made as follows:

1. If Design-Builder’s fee is a fixed fee, payments prior to Substantial Completion will be in an amount equal to [ ] percent of such fee earned to the date of the approved Application for Payment (less in each case payments previously made on account of such fee) based on the progress of the Work measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Work on the number of units completed), and upon Substantial Completion in an amount sufficient to increase total payments to Design-Builder on account of his fee to [ ] percent of Design-Builder’s fee. In the event there is no Schedule of Values the progress of the Work will be measured as provided elsewhere in the Contract.

2. If Design-Builder’s fee is a percentage fee, payments prior to Substantial Completion will be in an amount equal to [ ] percent of such fee (less in each case payments previously made on account of such fee) based on the Cost of the Work completed, and upon Substantial Completion in an amount sufficient to increase total payments to Design-Builder on account of that fee to [ ] percent of Design-Builder’s fee.

D. Notwithstanding any provision above, no retainage shall be withheld with respect to the portion of a payment application pertaining to engineering, design, and other professional services.

4.03 Final Payment

A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.06 of the General Conditions, Owner shall pay the final amount due.

ARTICLE 5 – INTEREST

5.01 Interest Rate

A. All amounts not paid when due shall bear interest at the rate of [ ] percent per annum, or if applicable at the rate stated in a governing prompt payment statute.

ARTICLE 6 – INSURANCE AND BONDS

6.01 Insurance

A. Design-Builder and Owner shall obtain and maintain insurance as required by the General Conditions and Supplementary Conditions.

6.02 Performance, Payment, and Other Bonds

A. As part of the Work under the Completion Stage, the Design-Builder shall furnish a performance bond and a payment bond, each in an amount equal to the Completion Stage Price as duly established and modified under this Contract, as security for the faithful performance and payment of Design-Builder’s obligations under the Completion Stage.

These bonds shall be in the form prescribed by the Contract and governed by the provisions of Paragraph 6.01 of the General Conditions. Design-Builder shall also furnish such other bonds as are required by other specific provisions of the Contract.

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ARTICLE 7 – DESIGN-BUILDER’S REPRESENTATIONS

7.01 Representations

A. Design-Builder makes the following representations for Owner’s reliance:

1. Design-Builder has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents.

2. Design-Builder has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

3. Design-Builder is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work.

4. Design-Builder has carefully studied all: (a) reports of explorations and tests of subsurface conditions at or adjacent to the Site, and all drawings of physical conditions relating to existing surface or subsurface structures at the Site, if any, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings, and (b) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings.

NOTE(S) TO USER:

Modify or delete Paragraph 7.01.A.4 if there are no such reports or drawings.

5. Design-Builder has considered the information known to Design-Builder itself, and to Construction Subcontractors and Project Design Professionals that Design-Builder has selected as of the Effective Date; information commonly known to design professionals, design-builders, and contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site-related reports and drawings (if any) identified in the Contract Documents or otherwise made available to Design-Builder, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Design-Builder; and

(3) Design-Builder’s safety precautions and programs.

6. Based on the information and observations referred to in the preceding paragraph, Design-Builder agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary prior to entry into the Contract at the Contract Price, subject to the Contract Times.

7. Design-Builder is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

8. Design-Builder has given Owner written notice of all conflicts, errors, ambiguities, or discrepancies that Design-Builder has discovered in the Contract Documents, and the written response from Owner is acceptable to Design-Builder.

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9. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

10. Design-Builder’s entry into this Contract constitutes an incontrovertible representation by Design-Builder that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents.

ARTICLE 8 – ACCOUNTING RECORDS

8.01 Maintaining and Preserving Cost Records

A. Design-Builder shall keep such full and detailed accounts of materials incorporated and labor, services, and equipment utilized for the Work as may be necessary for proper financial management under this Agreement. Subject to prior written notice, Owner shall be afforded reasonable access during normal business hours to all Design-Builder’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to cost-based or time-based compensation or reimbursement of any type or description, including but not limited to direct labor hours, standard rate hours, reimbursable expenses, change order pricing, and the Cost of the Work (if applicable).

Design-Builder shall preserve all such documents for a period of three years after the final payment by Owner.

ARTICLE 9 – CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement (pages 1 to [ ], inclusive).

2. General Conditions (pages [ ] to[ ], inclusive).

3. Supplementary Conditions (pages [ ] to [ ], inclusive).

4. Conceptual Documents.

5. Exhibit A, Preliminary Stage Work.

6. Exhibit B, Compensation.

7. Addenda (numbers [ ] to [ ]).

8. Design-Builder’s Proposal.

9. Proposal Amendment.

10. The following which may be delivered or issued on or after the Effective Date of the Contract and are not attached hereto:

a. Performance Bond (in the form attached).

b. Payment Bond (in the form attached).

c. Other Bonds.

d. Work Change Directives.

e. Change Orders.

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f. Record Drawings and Record Specifications.

11. Other Exhibits to this Agreement (enumerated as follows):

B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above).

C. There are no Contract Documents other than those listed above in this Article 9.

D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions.

ARTICLE 10 – MISCELLANEOUS

10.01 Terms

A. Terms used in this Agreement will have the meanings stated in the General Conditions and Supplementary Conditions.

10.02 Assignment of Contract

A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract.

10.03 Successors and Assigns

A. Owner and Design-Builder each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract.

10.04 Severability

A. Any provision or part of the Contract held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Design-Builder, who agree that the Contract shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

10.05 Design-Builder’s Certifications

A. Design-Builder certifies that it has not engaged in corrupt, fraudulent, collusive or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 15.05:

1. “corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the bidding process or in the Contract execution;

2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

Owner, (b) to establish Bid prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition;

3. “collusive practice” means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and

4. “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract.

10.06 Other Provisions

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IN WITNESS WHEREOF, Owner and Design-Builder have signed this Agreement.

This Agreement will be effective on [ ] (which is the Effective Date of the Contract).

OWNER: DESIGN-BUILDER:

By: By:

Title: Title:

[If Design-Builder is a corporation, partnership, LLC, or a joint venture, attach evidence of authority to sign. In the case of a joint venture, expand the signature section to accommodate execution of the Agreement by an authorized representative of each joint venturer.]

Attest: Attest:

Title: Title:

Address for giving notices: Address for giving notices:

License No.:

(where applicable)

[State a license number in those states or other jurisdictions where applicable or required.]

EXHIBIT A – Preliminary Stage Work.

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This is EXHIBIT A, consisting of [ ] pages, referred to in and part of the Agreement between Owner and Design-Builder for Progressive Design-Build dated

EXHIBIT A – PRELIMINARY STAGE WORK

ARTICLE 1 –BASIC SERVICES: Preliminary Stage

A1.01 Study and Report Phase

A. In the Study and Report Phase of the Preliminary Stage, the Design-Builder shall:

1. Review the Conceptual Documents, if any, and other information furnished by Owner.

2. Consult with Owner as needed to define and clarify Owner’s requirements for the Project, as set forth in the Conceptual Documents or otherwise, including design objectives and constraints; space, capacity and performance requirements; flexibility and expandability needs; quality standards; and Owner’s budgetary limitations.

3. Identify available data, information, reports, facilities plans, and site evaluations; obtain such items from Owner or others; review.

4. Request that Owner obtain data or services that are not part of Design-Builder’s Preliminary Stage Services and are reasonably required to enable Design-Builder to complete its Preliminary Stage Services.

5. If Owner has already identified one or more potential solutions to meet its Project requirements, in the Conceptual Documents or otherwise, then proceed with the study and evaluation of such potential solution(s).

6. If Owner has not identified one or more potential solutions for study and evaluation, or if the Owner’s proposed solutions are not feasible, then identify one or more potential solutions to meet Owner’s Project requirements, and study and evaluate such potential solution(s).

7. Identify and analyze relevant requirements of governmental authorities having jurisdiction over the Project; consult with such governmental authorities as necessary.

8. Visit the Site(s) to review existing conditions and facilities, unless such visits are not necessary or applicable to meeting the Study and Report objectives.

9. Review any environmental assessments and impact statements furnished by Owner, and analyze the effect of any such environmental documents (including any mitigation measures identified in the documents) on the Project, including the contemplated design and construction.

10. Recommend to Owner those solutions which in Design-Builder’s judgment meet Owner’s requirements for the Project.

11. Prepare a report (the “Report”) which will, as appropriate, contain schematic layouts, sketches and conceptual design criteria, and appropriate exhibits; and indicate the applicable requirements, considerations involved, and Design-Builder’s recommended solutions. This Report will be accompanied by Design-Builder’s estimate of Design-Build Cost for each recommended solution. This Report shall include descriptions of any

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deviations from the Contract Documents, particularly the Conceptual Documents and excerpts from Design-Builder’s Proposal.

12. In the Report, advise Owner of any limitations on the use or applicability of the Report.

13. If requested to do so by Owner, assist Owner in identifying opportunities for enhancing the sustainability of the Project.

14. Use ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data” as a means to develop a scope of work and procedure for the identification and mapping of existing utilities, consistent with the provisions of Paragraph 5.05 of the General Conditions regarding Underground Facilities.

15. Develop a scope of work and survey limits for any topographic and other surveys necessary for design.

16. If Owner and Design-Builder have not already stipulated that certain Work will be performed by Construction Subcontractors selected on a competitive-bid basis (or by Design-Builder if it bids on such work and is the successful bidder), identify Construction Subcontract bid packages that in Design-Builder’s judgment should be let by competitive bidding.

17. Perform or furnish the following additional Study and Report Phase tasks or deliverables: [ ].

18. Furnish [ ] review copies of the Report (and any other deliverables) to Owner pursuant to the Preliminary Stage Schedule and review it with Owner.

19. Revise the Report (and any other deliverables) in response to Owner’s comments, as appropriate, and furnish [ ] copies of the revised Report (and any other deliverables) to the Owner pursuant to the Preliminary Stage Schedule.

B. Design-Builder’s Work under the Study and Report Phase of the Preliminary Stage will be considered complete on the date when Design-Builder has delivered the copies of the revised Report (and any other deliverables) to Owner.

A1.02 Preliminary Technical Documents

A. After acceptance by Owner of the Report, selection by Owner of a recommended solution and indication of any specific modifications or changes in the scope, extent, character or design requirements of the Project desired by Owner, and upon written authorization from Owner, Design-Builder shall:

1. Conduct necessary field surveys and topographic and utility mapping for the purpose of preparing Preliminary Technical Documents. Comply with the scope of work and procedure for the identification and mapping of existing utilities selected during the Study and Report phase based on ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data,” consistent with the provisions of Paragraph 5.05 of the General Conditions.

2. Visit the Site as needed to prepare the Preliminary Technical Documents.

3. Make measured drawings and conduct additional investigation of the Site.

4. Prepare or furnish Preliminary Technical Documents (including but not limited to final design criteria, preliminary drawings, outline specifications, and written descriptions of

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the Project) that show or describe the character, scope, and intent of, the Construction to be performed or furnished by Design-Builder in the Completion Stage. The Preliminary Technical Documents shall be based on or consistent with the Report unless noted otherwise. The Preliminary Technical Documents will be taken to a point of [ ] percent of the final design.

5. Provide in writing to Owner descriptions of any deviations in the Preliminary Technical Documents from the Contract Documents, particularly the Conceptual Documents and the excerpts from the Design-Builder’s proposal, or the Report.

6. Furnish to Owner [ ] final copies of the Preliminary Technical Documents according to the Preliminary Stage Schedule , and review them with Owner.

7. Revise the Preliminary Technical Documents in response to Owner’s comments, as appropriate, and furnish [ ] copies of the revised Preliminary Technical Documents to the Owner pursuant to the Preliminary Stage Schedule.

B. Design-Builder’s Work under the Preliminary Technical Documents Phase of the Preliminary Stage will be considered complete on the date when Design-Builder has delivered final copies of the Preliminary Technical Documents to Owner.

A1.03 Construction Planning

A. Planning Tasks: Concurrent with Design-Builder’s development of the Preliminary Technical Documents, Design-Builder shall begin to plan and organize anticipated construction activities. Tasks shall include (but are not limited to) the following:

1. Identification of potential Construction Subcontractors and Suppliers.

2. Constructability reviews, with ongoing feedback to the design professionals.

3. Development and refinement of the construction schedule, with the addition of greater scheduling detail as the design and construction planning progresses.

4. Identification of potential for phased or fast-track construction.

5. Consideration of off-site fabrication options.

6. Identification of the need for or advantage in making long lead-time equipment and materials purchases.

7. Development of Subcontract bid packages that will be let by competitive bidding.

B. Development of Completion Cost Estimate: Throughout the Preliminary Stage, Design- Builder shall develop and refine the Completion Cost Estimate, based on Site information, square-foot or similar estimated costs, the draft design, budget considerations, construction planning, projected schedule, quantity estimates, unit prices, cost of materials and labor, anticipated allowances, permits and taxes, storage and transportation costs, insurance costs, information from prospective Subcontractors and Suppliers, construction-phase engineering services, standard contingencies, administrative costs, Contract terms and conditions, and other relevant factors. Design-Builder shall conduct the development and refinement of the Completion Cost Estimate using a transparent “open book” process.

Under the open book process:

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1. Owner and Design-Builder shall meet as needed to review the status of the draft Completion Cost Estimate, including detailed line item components and supporting data and information.

2. Owner may at any time during the Preliminary Stage indicate to Design-Builder ways in which the draft Completion Cost Estimate might be improved, including opportunities for Owner to furnish materials or equipment, access to improved information regarding the Site or local conditions, changes in scope or schedule, and enhancing competition.

C. Final Completion Cost Estimate: After delivering the final Preliminary Technical Documents, as duly reviewed and revised, to Owner, as required in Paragraph A1.02 above, Design- Builder shall prepare a final Completion Cost Estimate, based on such final Preliminary Technical Documents and all other relevant factors relevant to cost.

D. Completion Price: Pursuant to the Preliminary Stage Schedule, Design-Builder shall submit to Owner proposed Completion Price(s) as set forth in Paragraph 3.03 of this Agreement. The proposed Completion Price(s) shall indicate the Contract Times applicable to each specific Contract Price.

A1.04 Initial Equipment and Materials Procurement

A. As Design-Builder develops the Preliminary Technical Documents, it shall:

1. identify equipment to be installed during construction that (a) requires early procurement to allow sufficient time for manufacture or customization, and delivery to the Site, or (b) will not be readily available, or will be inordinately expensive if not procured well in advance of construction.

2. Identify materials needed for construction that (a) should be procured and stockpiled to avoid potential shortages, (b) are currently priced advantageously and should be procured or ordered to avoid possible price fluctuations, (c) require early procurement to give sufficient time for shipment and delivery.

B. In the case of any such item, Design-Builder shall propose to Owner early procurement, prior to completion of the Preliminary Technical Documents. Owner shall at its option (1) procure the item itself, and make the item available to Design-Builder during construction,

(2) authorize Design-Builder to purchase the item, for mutually agreed compensation or reimbursement based on cost and standard mark-ups, or (3) inform Design-Builder that the item is not to be procured until a later point, with acknowledged acceptance by Owner of the risk of adverse price or schedule impacts.

ARTICLE 2 – ADDITIONAL SERVICES

A2.01 Owner’s Authorization in Advance Required

A. If authorized in writing by Owner, during the Preliminary Stage the Design-Builder shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by Owner as indicated in Article 4 of the Agreement.

1. Prepare applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; prepare or review environmental assessments and impact statements;

review and evaluate the effects on the design requirements for the Project of any such statements and documents prepared by others; and assist in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project.

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2. Verify the accuracy of drawings or other information furnished by Owner.

3. Perform services resulting from significant changes in the scope, extent or character of the portions of the Project presented or specified by Design-Builder or its design requirements including, but not limited to, changes in size, complexity, Owner’s schedule, character of construction, or method of financing; and revise previously accepted studies, reports, technical exhibits, or other Contract Documents when such revisions are required by changes in Laws or Regulations enacted subsequent to the Effective Date of the Agreement, or are due to any other causes beyond Design- Builder’s control.

4. Perform services required as a result of Owner’s providing incomplete or incorrect Project information.

5. Provide renderings or models for Owner’s use.

6. Undertake investigations and studies of Owner’s operations including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; prepare feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals;

assist in obtaining financing for the Project; evaluate processes available for licensing, and assist Owner in obtaining process licensing, audits, or inventories required in connection with construction performed by Owner.

7. Perform services requiring out-of-town travel by Design-Builder, other than for visits to the Site or Owner’s office.

8. Prepare for, coordinate with, participate in, and respond to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and perform or furnish services required to revise studies, reports, Technical Documents or other Proposal Documents as a result of such review processes.

EXHIBIT B - Design Builder’s Compensation.

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

This is EXHIBIT B, consisting of [ ] pages, referred to in and part of the Agreement between Owner and Design-Builder for Progressive Design-Build dated

EXHIBIT B – DESIGN BUILDER’S COMPENSATION

NOTE(S) TO USER:

Preparing a Project-specific Exhibit B: In Exhibit B, the parties must specify how the Design-Builder will be compensated for performing the Work. Exhibit B as published contains three options for the primary compensation for Work under the Preliminary Stage, and two options for Completion Stage Work. In preparing a Project-specific agreement, retain only the pages from Exhibit B that apply to the actual agreement that is being prepared, and discard the rest.

Preliminary Stage—Basic…